In this post I simply want to direct readers to places where they can read about the legal issues raised by the Israeli blockade of Gaza and about Israel’s attempt to enforce that blockade earlier this week. I am sure we will return to these matters on EJIL:Talk! in the next few days. Douglas Guilfoyle, who has written several posts on this blog on issues relating to maritime interdiction has a piece in the Times (of London) in which he states that:

International law tells us that states may create and enforce blockades during an armed conflict, but it also tells us that those blockades must meet humanitarian standards to be lawful. . . .

The law or armed conflict requires that blockading states allow aid through to the civilian population; however, the blockading state may control the channel through which aid is delivered, and that is what Israel has been doing. The authority to intercept vessels and control aid deliveries, however, is available only in a lawful blockade. To be lawful, a blockade must not be implemented where the damage to the civilian population is excessive in relation to the concrete and direct military advantage anticipated from the blockade, and this is where Israel’s legal position is open to question.

He then goes on to examine the legality of the operation to enforce the blockade and considers whether the Israeli soldiers acted lawfully in self-defence – a matter which may prove to be as important and worthy of analysis as the legality of the blockade. Douglas then turns to and categorically rejects the charge that the operation was an act of piracy, as does Julian Ku at Opinio Juris. Douglas has also given two interviews on the BBC which are worth listening to. See here and also here (around the 19 min mark). Afua Hirsch, Legal Correspondent at the Guardian also has a piece considering the legal issues here.

Also at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is Israel is involved in in Gaza. He accepts that if Israel is involved in an international armed conflict (IAC) in Gaza then it has the right to blockade Gaza. However, he questions whether blockades are lawful in non-international armed conflicts. So:

Israel’s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention.

Kevin’s post raises what I think is a very important question – whether Israeli is still in belligerent occupation of Gaza. Marko has dealt with this issue on the blog (see here). If Israel is in belligerent occupation then it has obligations to permit humanitarian relief. It would not simply be a matter of the law of blockade (which Douglas discusses) or about the prohibition of starvation or methods of warfare which cause damage to the civilian population that are excessive in relation to the miltary aim pursued. In the case of occupation, the Occupying Power has a more direct obligation. In particular, Art. 59 of the Fourth Geneva Convention (GCIV)

If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal.

Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing.

All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection.

A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.

The obligation on the Occupying Power to accept such relief is unconditional. In all cases where occupied territory is inadequately supplied the Occupying Power is bound to accept relief supplies destined for the population.

Whether or not Israel is in breach of its obligations under this provision would depend on whether or not the population is inadequately supplied (as asserted by the UN and denied by Israel). Of course, even if it were, Israel would still then have the right to search and regulate the passage of the relief supplies. Israel claims (see Press Release here) that:

The organizers of the flotilla scorned Israel’s efforts to prevent the vessels from reaching Gaza, via diplomatic dialogue, announcements in advance and declarations over the radio. The organizers of the flotilla similarly rejected Israel’s offer to transfer the aid on board directly to Gaza via Israel, thereby attesting that their goal was to “break the blockade.”

Assuming this was correct, Israel would be right to prevent the attempt to deliver the aid but that would just take us back to the question of the level of violence used in carrying out the operation (on which see Douglas)!

UPDATE: Readers may be interested in looking at material from the Israeli government on legal aspects of the blockade and the interception of the flotilla. The Israeli Defence Forces Military Advocate General’s website has some information on legal aspects regarding the interception of the Gaza flotilla (see here). Also, the Israeli Ministry of Foreign Affairs has legal analysis here.

6 Responses

Thank you for this post, this incident raises some very pertinent questions. As Marko Milanovic and Kevin Jon Heller have suggested earlier, the issues of whether Gaza is still occupied by Israel and whether the blockade of Gaza is legal are far from straightforward. I am wondering if the recent pronouncements in the UN Security and Human Rights Councils, clarify or add to the confusion.

The Statement, issued on 1 June, is on a much broader topic of ‘the situation in the Middle East, including the Palestinian question’ Although it does refer to the ‘loss of life and injuries resulting from the use of force during the Israeli military operation in international waters against the convoy sailing to Gaza’, it does not mention the occupation of Gaza at all. The statement also does not explicitly mention the blockade, it instead refers to the ‘grave humanitarian situation’ and ‘the need for sustained and gular flow of goods and people in Gaza’. The Security Council calls for a ‘prompt, impartial, credible and transparent investigation conforming to international standards’ without saying who would be mandated to do it.

One day later, the Human Rights Council adopted resolution A/HRC/RES/14/1 (http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/RES-14-1.doc) on ‘the grave attacks by Israeli forces against the humanitarian boat convoy’. In the preamble, the Council referred to the 4th Geneva Convention as well as the UN Charter and the Universal Declaration for Human Rights and then proceeded to condemn ‘in the strongest terms the outrageous attack by the Israeli forces’. The resolution explicitly refers to Israel as ‘the occupying Power Israel’ and the Council calls upon it to ‘immediately lift the siege on occupied Gaza and other occupied territories’. When it comes to investigation, the Human Rights Council is much more specific than the Security Council. It actually decided to ‘dispatch an independent international fact finding mission to investigate violations of international law, including international humanitarian and human rights law’ and to report back on its findings in its next session.

The Resolution was adopted by vote. 32 members voted for, 3 against, 9 abstained. The Security Council veto powers voted as follows: China and Russia for, USA against, France and UK abstained. The only EU member state that voted for was Slovenia.

So while the Security Council maintains that nothing is certain, the Human Rights Council is not only certain that Gaza is indeed occupied by Israel, but that the incident was a clear violation of international law. The presence of political considerations in both Councils nothwithstanding, I wonder what the implications of these two documents could be in strictly legal terms, in particular regarding the relationship between international humanitarian and human rights law.

Thanks to Heller, Akande and all others for having taken the time to set out their thoughts.

First, let’s agree with Heller that Israel has the right to impose and to enforce a blockade on Gaza, within the limits of the applicable rules, if it is in an international armed conflict. In the quote above, Heller (who may have changed his position since) was of the view that Israel could not claim to be in an IAC with Hamas unless it were also an occupying power. I must say I don’t follow the reasoning on this point, inasmuch as a State can be in an IAC without being an occupier, but in any event, the Israeli government has repeatedly invoked the existence of an armed conflict with Hamas as a justification for the blockade of Gaza, while at the same time denying that it remains in occupation. The pleadings of the Government of Israel in the Gabber case clearly imply that the “armed conflict” in question is in its view an IAC (application of Protocol I etc.): Gabber v. Prime Minister High Court of Justice (30 January 2008) http://www.mfa.gov.il/NR/rdonlyres/938CCD2E-89C7-4E77-B071-56772DFF79CC/0/HCJGazaelectricity.pdf, esp. paras. 13-15. The Israeli government does accept that it has a duty to allow humanitarian aid to pass into Gaza.

If we agree that an IAC exists between Israel and the Gaza Strip / Hamas (and I don’t know of a plausible argument to the contrary), then there are two questions: whether Israel has the right to enforce the blockade, and how. Obviously much of the discussion focuses on the “how”, on self-defence etc., but “whether” is the prior question and if Israel does not have the right to enforce the blockade, then the question of whether it acted proportionally and out of necessity etc. has a different and lesser significance. On this point, I note that Douglas Guilfoyle in his piece in the Times, quoted above, implies a strict binary logic: either the blockade is lawful and one has a right to enforce, or it is not and one doesn’t. Does anyone want to question this? I don’t know the law of blockade well enough, but it seems to me to be flawed as an approach in that by conflating the issues of the blockade’s lawfulness with that of the right to enforce, it confuses two separate duties and robs States that might have imposed an over-restrictive blockade of an incentive to enforce it according to the principles of necessity and proportionality. It would seem to me a more sensible approach would be to urge Israel, in this case, to respect the latter principles while at the same time urging that the blockade be made to comply with international norms and be put under more effective international supervision.

Not only is there a plausible argument that Israel is NOT engaged in an international armed conflict with Hamas, it is to my mind implausible to say that it IS engaged in such a conflict. CA2 of the Geneva Conventions defines IACs as interstate conflicts only and exclusively. To say that the Israeli/Hamas conflict is an IAC, you would have to (1) either show that Hamas/Gaza is a state, which I think is fairly clear that it is not; or (2) demonstrate some expansion of the definition of an IAC, as was for example done by the (inapplicable) Art. 1(4) of AP I.

It is only this second route that might possibly lead to the characterization of the conflict as international – but it is not in my view very promising. Thus, in the Targeted Killings case, the Israeli Supreme Court defined IACs as conflicts which cross the borders of a state (which is NOT the CA2 definition), and/or as conflicts which take place within an occupied territory, which is (i) by no means obviously the case, and (ii), of course, Gaza probably is not occupied.

So, in short, it is very hard to argue that the conflict is actually an IAC. And if you look at the official Israeli government position as expressed internationally (rather than to the Supreme Court, which again has adopted a rather idiosyncratic way of looking at things), you will see that Israel simply says that it is in a ‘state of armed conflict’ with Gaza, without qualifying what type of conflict it is (see, e.g., the links to the Israeli MFA website given by Dapo above). Israel’s government lawyers (generally as good as they come) are well aware of the legal problems with such an argument, as well as of its implications (e.g. that Hamas ‘soldiers’ would at least have an arguable claim to POW status). This is why they maintain a policy of deliberate ambiguity on the matter.

And if the conflict is a NIAC, as Kevin explains, there is a high degree of doubt as to whether the parties to such a conflict – mind you, both states and non-state actors equally – would have the right to set up a blockade. In other words, if Israel has the right to blockade Gaza, then Hamas would have the theoretical right to blockade Israel. Note that it would be necessary for the parties to have such a RIGHT given by IHL, because only this would allow them to do something that would otherwise be unlawful – interdict the ships of third states on the high seas.

Thanks for this Marko. You make a number of good points and I don’t disagree that the characterization of the conflict merits some inquiry.

It may be my own ignorance, but the NIAC possibility seems purely speculative inasmuch as the GS is not recognized as being part of Israel by other States and Israel makes no such claim itself to my knowledge. I take the objective of this line of argument to be to ensure application of IHL in the event one doubts the IAC status of the conflict.

As for that, yes, it seemed to me that if there were a plausible argument contra it would have to arise either from the ambiguous international legal status of the GS, or from the related fact that Israel claims to be at war with Hamas, the non-State group, rather than with another State. And because as you say Israel maintains a policy of ambiguity here as elsewhere (intelligence operations abroad, nuclear weapons), what I was pointing to in my previous post was the fact that notwithstanding the Government’s ambiguous reference to “armed conflict”, including in that case, the Government backed up its argument with reference to the law of IAC alone in its pleadings (i.e. not just in the reasoning of the Court).

I’m afraid I’ll have to dodge your major question about how the laws of war / IHL can be said to apply in light of the GS’ uncertain status, but I would want to approach that question in seeking to ensure applicability of the law even or especially in situations of considerable complexity or ambiguity.

I’m a little perlexed as to why a blockade would be deemed illegal under IHL in the context of a NIAC. If there is no explict rule or customary norm prohibiting blockades in NIAC then IHL must permit blockades in NIAC – no doubt there’s a fancy latin term for this (incidently, I think the anomalous position of Gaza makes it impossible to make any easy determination of whether we’re talking about a NIAC or a belligerent occupation here).

It seems to me that the important issue here is the nature of the blockade: for example, does it amount to collective punishment outlawed in both NIACs and IACs? Does the blockade allow for adequate medical relief and other essential supplies for the civilian population? Does it satisfy the CIL principles of discrimination and proportionality? Is it compatable with Israel’s obligations under the ICESR? Judging by the reports of UNRWA and other independent expert bodies it seems to me that Israel has some serious questions to answer.

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.